Wolf v. Ferguson

Pee. Curiam : This case has been so elaborately argued by the auditor and the court below, that we do not find it necessary to continue the discussion at length. The reasons given by the learned judge for awarding the sum of $286.22 to W. W. Britton, guardian, are entirely satisfactory. This disposes of the second assignment of error. [288] We desire to say in regard to the first, that it is exceedingly vague and unsatisfactory. To allege in general terms that “the court erred in confirming the report of the auditor,” is to give us no information whatever. In what respect, or for -what reason did it err ? The remaining assignment, the third, is equally vague. It is, that “ the court erred in going outside of the report of the auditor and outside of the testimony, and in making up a report without legal testimony.” What fact did the court find outside of the testimony, or without testimony? This should have been stated to give the assignment any point. That the court below found some facts not found by the auditor appears from the opinion of the learned judge when he says: “I am of opinion therefore that the auditor’s report must be confirmed. But I have been compelled to find many facts not embraced in the auditor’s findings, in view of the course of the argument in court, and in order to a satisfactory consideration of all the questions raised, and I ought not to finally determine the cause upon this apparent state of facts, without giving Mr. Hollar’s counsel an opportunity to explain or rebut them. In order that they may move for a re-argument or a reference back to the auditor, it is ordered that the exceptions be dismissed and the auditor’s report confirmed, and that distribution be made accordingly. But this order and decree not to be entered or take effect for fourteen days from this date, and if within that time a motion be filed, the cause to be placed on the current argument list.” The learned judge had the right to go outside of the auditor’s report; he was not shut up within its four corners, and there is nothing to show that he went outside of the evidence. His opinion does not say so, and if he found any fact without evidence, it should have been distinctly-stated in the assignment of error. And, however the case may be, there was an opportunity afforded by the learned judge to correct any of his findings by a reference back to an auditor, or by a re-argument before the court. The appellant did not see proper to avail himself of this right, but brought the case directly here by appeal. As no objection to the findings of the court was made below, where it might and should have been made, we can attach but little weight to it here. The decree is affirmed and the appeal dismissed at the costs of the appellant.